Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this “
Agreement ”)
is made and entered into and effective as of February 26, 2007 (the
“
Effective Date ”),
between GoFish Corporation (the “
Company ”),
and Tabreez Verjee, an individual (the “
Executive ”).
WHEREAS,
the Company and the Executive wish to memorialize the terms
and conditions of the Executive’s employment by the
Company in the position of President, Head of Strategy and
Corporate Development;
NOW,
THEREFORE, in consideration of the covenants and promises
contained herein, the Company and the Executive agree as
follows:
1.
Employment Period .
The Company offers to employ the Executive, and the Executive
agrees to be employed by Company, in accordance with the terms and
subject to the conditions of this Agreement, commencing on the
Effective Date and terminating on the fourth anniversary of the
Effective Date (the “
Scheduled Termination Date ”),
unless terminated in accordance with the provisions of Section 10
below, in which case the provisions of Section 10 shall
control;
provided, however ,
that unless either party provides the other party with written
notice of his or its intention not to renew this Agreement at least
90 days prior to the expiration of the initial term or any renewal
term of this Agreement (as the case may be), this Agreement shall
automatically renew for additional one-year periods commencing on
the day after such expiration date. The Executive affirms that no
obligation exists between the Executive and any other entity which
would prevent or impede the Executive’s immediate and full
performance of every obligation of this Agreement.
2.
Position and Duties .
During the term of the Executive’s employment hereunder, the
Executive shall continue to serve in, and assume duties and
responsibilities consistent with, the position of President, unless
and until otherwise instructed by the Company. The Executive agrees
to devote to the Company eighty percent (80%) of his working time,
as well as his skill, energy, and best business efforts, during the
term of his employment with the Company, and the Executive shall
not engage in business activities outside the scope of his
employment with the Company if such activities would detract from
or interfere with his ability to fulfill his responsibilities and
duties under this Agreement or require substantial amounts of his
time or of his services. Notwithstanding the foregoing provisions
of this Section 2, the Company is aware of and consents to the
Executive’s continuing involvement with Global Asset
Capital.
3.
No Conflicts .
The Executive covenants and agrees that for so long as he is
employed by the Company, he shall inform the Company of each and
every future business opportunity presented to the Executive that
arises within the scope of the Business of the Company (as defined
below) and would be feasible for the Company, and that he will not,
directly or indirectly, exploit any such opportunity for his own
account.
4.
Location .
The locus of the Executive’s employment with the Company
shall be the Company’s office located in San Francisco,
California and any other locus where the Company now or hereafter
has a business facility.
5.
Compensation .
(a)
Base Salary .
During the term of this Agreement, the Company shall pay, and the
Executive agrees to accept, in consideration for the
Executive’s services hereunder,
pro rata bi-weekly
payments of the annual salary of $175,000.00, less all applicable
taxes and other appropriate deductions.
The
Compensation Committee (the “Compensation
Committee”) of the Company’s Board of Directors
(the “Board”) shall also review the
Executive’s base salary annually and shall make a
recommendation to the Board as to whether such base salary
should be increased, which decision shall be within the
Board’s sole discretion.
(b)
Bonus .
During the term of this Agreement, the Executive shall be entitled
to receive a bonus, which may be paid annually or semi-annually at
the discretion of the Compensation Committee (or by the independent
members of the Board if there exists no Compensation Committee),
the aggregate of which bonus shall not exceed 40% of his base
salary, and the actual amount of which bonus shall be determined
according to achievement of performance-related financial and
operating targets established annually for the Company and the
Executive by the Compensation Committee (or by the independent
members of the Board if there exists no Compensation Committee). As
of the Effective Date, and unless modified by the Compensation
Committee (or by the independent members of the Board if there
exists no Compensation Committee), the Executive shall be entitled
to receive a semi-annual bonus. The performance targets described
above for each fiscal year shall be adopted by the Compensation
Committee promptly after the end of the prior fiscal year, but in
no event later than March 31
st of
the current fiscal year. Each bonus, or in the case of a
semi-annual bonus, one installment of the semi-annual bonus, shall
be paid by the Company to the Executive promptly after the first
meeting of the Board following the completion of the annual audit,
which meeting shall occur on or about April 15th of each
year.
(c)
Initial Compensation .
As an incentive to formalize his existing relationship with the
Company, and in recognition of the Executive’s seven months
of full-time work already completed without compensation on behalf
of the Company, the Executive will receive, and the Company agrees
to pay, a cash amount of $100,000, payable within 45 days of the
execution of this Agreement.
6.
Expenses .
During
the term of this Agreement, the Executive shall be entitled to
payment or reimbursement of any reasonable expenses paid or
incurred by him in connection with and related to the performance
of his duties and responsibilities hereunder for the Company. All
requests by the Executive for payment of
reimbursement
of such expenses shall be supported by appropriate invoices,
vouchers, receipts, or such other supporting documentation in such
form and containing such information as the Company may from time
to time require, evidencing that the Executive, in fact, incurred
or paid said expenses.
7.
Vacation .
During the term of this Agreement, the Executive shall be entitled
to accrue, on a
pro rata basis,
20 vacation days per year. The Executive shall be entitled to carry
over any accrued, unused vacation days from year to year without
limitation.
8.
Stock Options .
The Company hereby agrees that the Executive
shall be granted stock options on the terms and conditions
hereinafter stated:
(a)
Grant of Options .
In its sole discretion and at any time during the term of this
Agreement, the Company may grant the
Executive an option to purchase shares of the
Company’s common voting stock (the “
Option ”)
under the Company’s 2006 Stock Option Plan (the
“
Stock Option Plan ”).
Each such grant shall be evidenced by an Option Agreement as
contemplated by the Stock Option Plan. The Executive shall be
eligible for such grants of Options and other permissible awards
(collectively with Options, “Awards”) under the Stock
Option Plan as the Compensation Committee or the Board shall
determine in its sole discretion.
(b)
Option Price; Term .
The
per
share exercise price of the Option shall be the market value of a
share of the Company on the date of the grant. The term of the
Option shall be ten years from the date of grant.
(c)
Vesting and Exercise .
One-third (1/3) of the Option shall be vested and exercisable on
the first anniversary of the grant of the Option. Thereafter, an
additional one-thirty sixth (1/36) of the Option shall be vested
and become exercisable on the last day of each month, subject to
the provisions of Section 8(d) below.
(d)
Termination of Service; Accelerated Vesting .
(i)
If
the Executive’s employment is terminated for Cause, as
such term is defined below, all unvested Awards shall
immediately expire effective the date of termination of
employment. Vested Awards, to the extent unexercised, shall
expire 120 days after termination of employment.
(ii)
If
the Executive’s employment is terminated voluntarily by
the Executive without Good Reason, as such term is defined
below, all unvested Awards shall immediately expire effective
the date of termination of employment. Vested Awards, to the
extent unexercised, shall expire 120 days after the
termination of employment.
(iii)
If
the Executive’s employment terminates on account of
death or Disability, as defined below, all unvested Awards
shall immediately expire effective the date of termination of
employment. Vested Awards, to the extent unexercised, shall
expire one year after the termination of
employment.
(iv)
If
the Executive’s employment is terminated (A) in
connection with a Change of Control (or following a Change of
Control event), (B) by the Company without Cause, or (C) by
the Executive for Good Reason, all unvested Awards shall
immediately vest and become exercisable effective the date of
termination of employment, and to the extent unexercised,
shall expire one year after any such event.
9.
Other Benefits .
(a)
During
the term of this Agreement, the Executive shall be eligible to
participate in incentive, savings, retirement (401(k)), and
welfare benefit plans, including, without limitation,
health, medical,
dental,
vision,
life (including accidental death and dismemberment)
,
and disability insurance plans (collectively, “
Benefit Plans ”),
in substantially the same manner, including but not limited to
responsibility for the cost thereof, and at
substantially the same levels, as the Company makes
such
opportunities available to all of the Company’s
managerial
or salaried executive
employees.
(b)
The
Executive’s spouse and dependent minor children will be
covered under the Benefit Plans providing health, medical,
dental, and vision benefits, in substantially the same manner,
including but not limited to responsibility for the cost
thereof, and at substantially the same levels, as the Company
makes such opportunities available to the spouses and
dependent minor children to all of the Company’s
managerial or salaried executive employees.
(c)
The
Company shall purchase and maintain traditional directors and
officers liability insurance coverage in the amount of at
least $5,000,000 covering the Company’s officers and
directors, including the Executive, as of the Effective
Date.
(d)
Until
such time as Executive becomes eligible for coverage by the
Company’s medical coverage, the Company shall pay the
cost of COBRA coverage provided by the Executive’s prior
employer, to the same extent as such coverage was paid for by
such prior employer.
10.
Termination of Employment .
(a)
Death .
In the event that during the term of this Agreement the Executive
dies, this Agreement and the Executive’s employment with the
Company shall automatically terminate and the Company shall have no
further obligations or liability to the Executive or his heirs,
administrators, or executors with respect to compensation and
benefits accruing thereafter, except for the obligation to pay the
Executive’s heirs, administrators, or executors any earned
but unpaid base salary, unpaid
pro rata annual
bonus, and unused vacation days accrued through the date of death,
and vested but unexercised Awards;
provided ,
that nothing contained in this Paragraph shall be deemed to excuse
any breach by the Company of any provision of this Agreement. The
Company shall deduct, from all payments made hereunder, all
applicable taxes, including income tax, FICA, and FUTA, and other
appropriate deductions.
(b)
“
Disability .”
In
the event that, during the term of this Agreement, the Executive
shall be prevented from performing his duties and responsibilities
hereunder to the full extent required by the Company by reason of
Disability (as defined below), this
Agreement and the Executive’s employment with the Company
shall automatically terminate, and the Company shall have no
further obligations or liability to the Executive or his heirs,
administrators, or executors with respect to compensation and
benefits accruing thereafter, except for the obligation to pay the
Executive or his heirs, administrators, or executors any earned but
unpaid base salary,
unpaid
pro rata annual
bonus, and unused vacation days accrued through the
Executive’s last date of Employment with the Company, and
vested but unexercised Awards;
provided ,
that nothing contained in this Paragraph shall be deemed to excuse
any breach by the Company of any provision of this Agreement. The
Company shall deduct, from all payments made hereunder, all
applicable taxes, including income tax, FICA, and FUTA, and other
appropriate deductions through
the last date of the Executive’s employment with the Company.
For purposes of this Agreement, “
Disability ”
shall mean a physical or mental disability that prevents the
performance by the Executive, with or without reasonable
accommodation, of his duties and responsibilities hereunder for a
period of not less than an aggregate of three months during any
twelve consecutive months.
(c)
“
Cause. ”
(i)
At
any time during the term of this Agreement, the Company may
terminate this Agreement and the Executive’s employment
hereunder for “Cause.” For purposes of this
Agreement, “
Cause ”
shall be defined as the occurrence of:
(A)
gross neglect, malfeasance, or gross insubordination in performing
the Executive’s duties under this Agreement; (B) the
Executive’s conviction for a felony, excluding convictions
associated with traffic violations; (C) an egregious act of
dishonesty (including without limitation theft or embezzlement) or
a malicious action by the Executive toward the Company’s
customers or employees; (D) a willful and material violation of any
provision of Sections 11 and 12 hereof; (E) intentional reckless
conduct that is materially detrimental to the business or
reputation of the Company; or (F) material failure, other than by
reason of Disability, to carry out reasonably assigned duties or
instructions consistent with the title of President and Head of
Strategy and Corporate Development (provided that material failure
to carry out reasonably assigned duties shall be deemed to
constitute Cause only after a finding by the Board of Directors, or
a duly constituted committee thereof, of material failure on the
part of the Executive and the failure to remedy such performance to
the Board’s or such committee’s satisfaction within 30
days after delivery of written notice to the Executive of such
finding).
(ii)
Upon
termination of this Agreement for Cause, the Company shall
have no further obligations or liability to the Executive or
his heirs, administrators, or executors with respect to
compensation and benefits thereafter, except for the
obligation to pay the Executive any earned but unpaid base
salary, unpaid
pro rata annual
bonus, and unused vacation days accrued through the
Executive’s last day of employment with the Company. The
Company shall deduct, from all payments made hereunder, all
applicable taxes, including income tax, FICA and FUTA, and other
appropriate deductions.
(d)
Change of Control .
For purposes of this Agreement, “
Change of Control ”
means the occurrence of, or the Company’s Board’s vote
to approve: (A) any consolidation or merger of the Company pursuant
to which the stockholders
of the Company immediately before the transaction do not retain
immediately after the transaction, in substantially the same
proportions as their ownership of shares of the Company
’
s
voting stock immediately before the transaction, direct or indirect
beneficial ownership of more than 50% of the total combined voting
power of the outstanding voting securities of the surviving
business entity ;
(B) any sale, lease, exchange, or other transfer (in one
transaction or a ser
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